The Freedom to Lobby

WASHINGTON -- Everyone knows the First Amendment protects freedom of religion, speech, press and assembly. How many remember that, in addition, the First Amendment protects a fifth freedom -- to lobby?

Of course it doesn't use the word lobby. It calls it the right "to petition the Government for a redress of grievances." Lobbyists are people hired to do that for you, so that you can actually stay home with the kids and remain gainfully employed rather than spend your life in the corridors of Washington.

To hear the candidates in this presidential campaign, you'd think lobbying is just one notch below waterboarding, a black art practiced by the great malefactors of wealth to keep the middle class in a vise and loose upon the nation every manner of scourge: oil dependency, greenhouse gases, unpayable mortgages and those tiny entrees you get at French restaurants.

Lobbying is constitutionally protected, but that doesn't mean we have to like it all. Let's agree to frown upon bad lobbying, such as getting a tax break for a particular industry. Let's agree to welcome good lobbying -- the actual redress of a legitimate grievance -- such as protecting your home from being turned to dust to make way for some urban development project.

There is a defense of even bad lobbying. It goes like this: You wouldn't need to be seeking advantage if the federal government had not appropriated for itself in the 20th century all kinds of powers, regulations, intrusions and manipulations (often through the tax code) that had never been presumed in the 19th century and certainly never imagined by the Founders. What appears to be rent-seeking is thus redress of a larger grievance -- insufferable government meddling in what had traditionally been considered an area of free enterprise.

Good lobbying, on the other hand, requires no such larger contextual explanation. It is a cherished First Amendment right -- necessary, like the others, to protect a free people against overbearing and potentially tyrannical government.

What would be an example of petitioning the government for a redress of a legitimate grievance? Let's say you're a media company wishing to acquire a television station in Pittsburgh. Because of the huge federal regulatory structure, you require the approval of a government agency. In this case it's called the Federal Communications Commission.

Now, one of the roles of Congress is to make sure that said bureaucrats are interpreting and enforcing Congress' laws with fairness and dispatch. All members of Congress, no matter how populist, no matter how much they rail against "special interests," zealously protect this right of oversight. Therefore, one of the jobs of the chairman of the Senate Commerce Committee is to ensure that the bureaucrats of the FCC are doing their job.

What would constitute not doing their job? A textbook example would be the FCC sitting two full years on a pending application to acquire a Pittsburgh TV station. There could hardly be a better case of a legitimate "petition for a redress" than that of the aforementioned private entity asking the chairman of the appropriate oversight committee to ask the tardy bureaucrats for a ruling. So the chairman does that, writing to the FCC demanding a ruling -- any ruling -- while explicitly stating that he is asking for no particular outcome.

This, of course, is precisely what John McCain did on behalf of Paxson Communications in writing two letters to the FCC in which he asked for a vote on the pending television station acquisition. These two letters are the only remotely hard pieces of evidence in a 3,000-word front-page New York Times article casting doubt on John McCain's ethics.

Which is why what was intended to be an expose turned into a farce, compounded by the fact that the other breathless revelation turned out to be thrice-removed rumors of an alleged affair nine years ago.

It must be said of McCain that he has invited such astonishingly thin charges against him because he has made a career of ostentatiously questioning the motives and ethics of those who have resisted his campaign finance reform and other measures that he imagines will render Congress influence-free.

Ostentatious self-righteousness may be a sin, but it is not a scandal. Nor is it a crime or a form of corruption. The Times' story is a classic example of sloppy gotcha journalism. But it is also an example of how the demagoguery about lobbying has so penetrated the popular consciousness that the mere mention of it next to a prominent senator is thought to be enough to sustain an otherwise vaporous hit piece.

Free advice to the K-Street crowd: Consider a name change. Wynum, Dynum and Bindum: Redress Petitioners.

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